The Caswell Franklyn Column – Did Former Commissioner of Police Darwin Dottin Receive Justice in the Courts?
Former Commissioner of Police, Darwin Dottin, applied to the law courts to challenge the decision that effectively prematurely retired him from the Public Service. The decisions of both the High Court and Court of Appeal have clearly shown me that I only have a miniscule understanding of the law.
Based on my knowledge of public service rules and some court decisions that interpreted those rules, I was firmly of the view and predicted that Dottin would have prevailed. I am now reminded that a little learning is a dangerous thing. Nonetheless, I would still like to share the little learning that caused me to come to my erroneous conclusion.
Firstly, Mr. Dottin was sent on something called administrative leave that does not exist in the Public Service of Barbados, and I must add that the defence conceded that point. To my mind, the act of sending him on administrative leave would therefore have been a nullity and he should have been allowed back to his post. And that should have been the end of the matter but heads far wiser than mine thought differently.
From reading the decision of the Court of Appeal, it would appear that the Police Service Commission (PSC) came to the conclusion on its own initiative that Mr. Dottin should have been retired in the public interest, in accordance with section 11(1) of the Pensions Act. I must confess that I did not think that section 11(1) applied to him. But what do I know? Section 11(1) states:
Subject to section 13B, the Governor-General may require an officer to whom this section applies to retire from the service of the Crown in a civil capacity
(a) at any time after he attains the age of 55 years;
(b) in special cases at any time after he attains the age of 50 years.
Even though the PSC has the right to recommend to the Governor-General that a public officer should be retired in accordance with that section, there is a procedure, in the Service Commissions (Public Service) Regulations, 1978 to follow. I have been unable to find any hint in the appeal court’s decision that this procedure was even considered. Regulation 19 (1) and (2) state:
19. (1) Where it appears to a Permanent Secretary or Head of Department that, pursuant paragraph ( b) of section 11(1) of the Pensions Act, Cap. 25 an officer in his Ministry or Department who has attained the age of fifty years but not fifty-five years ought to be required to retire from the public service, that Permanent Secretary or Head of Department shall advise the officer accordingly and report the matter, together with his reasons therefor, to the Chief Personnel Officer for the consideration of the Commission, and the Commission shall recommend to the Governor-General whether or not the officer ought to be required to retire.
19 (2) An officer referred to in paragraph (1) shall be afforded an opportunity of submitting in writing to the Commission any representations he wishes to make regarding any advice given to him by the Permanent Secretary or Head of Department pursuant to paragraph (1).
I was therefore of the opinion that the PSC wrongly relied on section 11(1) even if it were applicable, since they had no authority to commence proceedings under that section. In this case, only the Permanent Secretary could have initiated that process. Mind you, I was not only relying on my limited knowledge to arrive at that position. I relied on the learning of Madam Justice Elneth Kentish who said, in the case 979/1996 Judy Lloyd v Attorney General:
“This case serves as a timely reminder to all vested with authority to make decisions under a power or duty conferred or imposed by law that where proceedings are stipulated as part of the decision making process, these procedures must be strictly adhered to …”
I must admit that the two decisions in the Dottin case are hard pills for me to swallow, but whether I like it or not, I must acknowledge that the Court of Appeal is always right in law, unless the Caribbean Court of Justice says otherwise